With very few exceptions, you can't trade time off for overtime already worked—even by request

Q We have a nonexempt employee who sent an e-mail requesting time off in lieu of pay for overtime hours he already worked. Are we allowed to grant his request?

Providing nonexempt employees with compensatory time in lieu of overtime pay is not allowed under the Fair Labor Standards Act (FLSA), unless the employer is a public agency such as a state, a political subdivision of a state, or an interstate governmental agency. Even then, certain requirements exist.

For example, compensatory time may be provided only if it is under the applicable provisions of a collective bargaining agreement, a memorandum of understanding, or some other agreement between the public agency and representatives of the employees. If no such agreements exist but there is some other agreement or understanding arrived at between the employer and employee before the work is performed, then it is permissible.

Additionally, there are limits on how much compensatory time may be substituted. Private sector employers may not replace overtime pay with compensatory time, even if the employee requests it.

Martin Regimbal is an attorney with The Kullman Firm in Columbus, Mississippi. You can reach him at mjr@kullmanlaw.com.